On-Call contract

As of 1 January 2020, the definition of the “on-call contract” will be included in the law to improve the position of on-call employees.

According to the law, there is an on-call contract if:

• the extent of the work has not been laid down as a number of hours per unit of time of at most one month, or at most one year, and the entitlement to wage is spread evenly over that unit of time;
• the employee is not entitled to continued payment of his salary if he has not performed the agreed work.

The inclusion of the term ‘on-call employee’ in the law means that also the min-max contracts fall under the term ‘on-call contract’. Consignment services do not fall under the term ‘on-call contract’, nor do certain availability services in the care sector, such as obstetricians, medical doctors, nurses and care providers.

With the inclusion of the term on-call employee, the law also sets a few conditions for the manner of calling. For example, an on-call employee must be called in writing (or electronically) at least four days in advance (this term can be shortened to 24 hours if this is included in the collective labour agreement). If the call has not taken place on time, the on-call employee is not obliged to appear. So you can still call up shortly in advance, but then the on-call employee does not have the obligation to respond to your call. If the employee has been called up, but the call is withdrawn or changed within that period of four days, the on-call employee is entitled to the wage in accordance with the called period.

In addition, with effect as from 1 January 2020 you have the obligation to offer on-call employees who have worked as an on-call employee for a year, an employment contract for a fixed number of hours. This offer must at least include the number of hours that the employee concerned has worked on average in the previous year. You will have to submit this offer in writing or electronically within one month. As long as you do not make an offer (in writing or electronically), the employee is entitled to the salary for these hours. The employee is not obliged to accept the offer. If the employee does not accept the offer, the old employment contract will continue to apply. We advise you to let the on-call employee confirm this to you in writing or electronically.

Please note: if you have an on-call employee who has been working for you for at least one year on 1 January 2020 on the basis of an on-call contract (or on the basis of a min-max employment), you must have made the offer before 1 February 2020!

Roadmap:

• Map the on-call contracts and find out which on-call employee started when, and what the average working time per month is.
• Schedule when the on-call employees are employed for a year, so that an offer can be made in time, or a notice can be given that their employment contracts will not be renewed (of course only if the employment contract ends by operation of law). Note: be aware that in the latter case you will after 1 January 2020 be due the transition allowance.
• Organise your organisation in accordance with the new rules regarding calls (in writing or digitally and four days in advance), and offer new on-call employees a contract with a duration of at most 12 months.